Home›*All Posts›A party is under no obligation to object to a out-of-time supplemental expert report since the court rules instruct that the late amendment shall be disregarded by both the court and the opposing party

A party is under no obligation to object to a out-of-time supplemental expert report since the court rules instruct that the late amendment shall be disregarded by both the court and the opposing party

[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order.

The party seeking to serve that discovery beyond the deadline must certify “that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” Ibid. If the party does not provide such a certification, “the late amendment shall be disregarded by the court and adverse parties.” Ibid.

The decision to exclude evidence is a sanction left within the sound discretion of the trial court. Mason v. Sportsman’s Pub, 305 N.J. Super. 482, 493 (App. Div. 1997). Three factors

which would “strongly urge” the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are
(1) the absence of a design to mislead,
(2) absence of the element of surprise if the evidence is admitted, and
(3) absence of prejudice which would result from the admission of the evidence.

Furthermore, “[t]he typical liberality with which late amendments to interrogatories had been tolerated was substantially affected by the 2000 rule amendments, then known as the Best Practice rules, which demanded stricter compliance with the discovery time frames than theretofore.” Pressler & Verniero, Current N.J. Court Rules, comment 1.1 to R. 4:17-7 (2011). The decision to exclude evidence must stand unless it is “so wide of the mark that a manifest denial of justice resulted.” Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990); accord In re Commitment of G.D., 358 N.J. Super. 310, 316 (App. Div. 2003).

A party is under no obligation to object to a out-of-time supplemental expert report since the court rules instruct that the “late amendment shall be disregarded” by both the court and the opposing party. R. 4:17-7. A party is not required to file a motion to strike such belated report. A party does not engage in gamesmanship by waiting to file a motion in limine at trial.

In Montiel v. Ingersoll, 347 N.J. Super. 246 (Law Div. 2001), a post-Best Practices case, the trial judge granted the plaintiff’s motion to exclude the testimony of the defendant’s expert for failure to identify the expert within time. Id. at 247. The court noted the expert was identified by amendment to an interrogatory on the day discovery ended, and the expert’s report was served well after the discovery period. Id. at 251. Furthermore, the defendant did not provide a proper certification of due diligence as required by the rules. Ibid. Thus, the court barred the expert’s testimony at trial. Id. at 255.